The Case of the Shortened Shotguns—Part II

The preceding "calamities" column described my activities in a so-called underworld murder case of some 35 years ago. I examined replicas of the cut surfaces of the barrels of the alleged murder weapons using a scanning electron microscope to determine what kind of tool had been used in the cutting. My testimony was intended to impeach that of the state's chief witness, Red Kelly, who was under the witness protection program. At the close of the column I was sitting in a courtroom waiting to testify while my wife was at home reading "The Godfather" and getting very nervous. The case later gave her cause to become even more nervous.

I spent two days in the courtroom expecting to testify, but was never called. I suspect the lawyers were hesitant to use me because I had never testified.

The defendants were convicted on some charges, but between appeals and a hung jury on some of the charges there had to be a second trial. The case of the reputed head of the New England branch of LCN was separated from that of the other defendants because of excessive pre-trial publicity. The defendants obtained a new attorney, Ray Daniels, who had been an F. Lee Bailey assistant, and impressed me a lot.

Attorney Daniels brought my electron microscopist, Lennie Sudenfield, to court to testify as to just how the scanning electron microscope worked. The witnesses were sequestered, so I could not hear his testimony, but Lennie was a very impressive witness. At the end of his testimony a non-lawyer associated with the defense burst out of the courtroom and loudly announced, "That Lennie, he describes that machine like it was a broad!"

Lennie was a tough act to follow, but I did my best. I testified as to how the markings on the gun barrels compared to those made by hacksaw, band saw, and abrasive wheel and had a number of impressive photographs entered in evidence. After many overruled objections by the prosecution, I gave my conclusion that two weapons had been cut by a band saw and the third by an abrasive wheel. This conclusion directly contradicted the testimony of the prosecution's chief witness, Red Kelly, who testified to cutting the barrels with a hacksaw. My use of the scanning electron microscope caught the prosecution flat-footed. They had used nothing stronger than a hand magnifying glass to study the gun barrels.

The state used an FBI agent in an attempt to rebut my testimony. After the agent described how he envisioned a hacksaw being used to cut off one of the gun barrels he was given a hand magnifying glass to observe the actual markings. These markings were at 90 degrees to his predictions.

Red Kelly's testimony of his participation in the two murders was the heart of the prosecution's case: everything else was ephemeral, circumstantial stuff. My unrefuted testimony punched a hole in the prosecution case and the defendants were acquitted of all charges.

A month or so later, Lennie and I gave the same testimony in the trial of the alleged head of the local LCN. Again the prosecution had no effective rebuttal and again the jury acquitted.

I have told this story hundreds of times and am sometimes asked what the big deal is about Kelly lying about a small part of his testimony. I ask the questioner to picture him/herself as juror in a murder trial and ask, "Would you send a man to prison for life based solely on the word of someone you believed to be lying in any part of his testimony?" The answer has always been, "no".

What about my ethics in getting involved in the defense of people generally believed to be members of the underworld? This and other cases have convinced me that unless even infamous defendants are allowed access to experts as well as counsel, the state might just as well turn them loose behind the jail and shoot them while they "try to escape". Red Kelly was flat lying but it required me or another "Trained Tin Kicker" of comparable credibility to prove it.

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